Maine Policy Review

Volume 29 Issue 2 's Bicentennial

2020

Indigenous Voices Charting a Course Beyond the Bicentennial: Eba gwedji jik-sow-dul-din-e wedji gizi nan-ul-dool-tehigw (Let’s try to listen to each other so that we can get to know each other)

Gail Dana-Sacco [email protected]

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Recommended Citation Dana-Sacco, Gail. "Indigenous Voices Charting a Course Beyond the Bicentennial: Eba gwedji jik-sow-dul- din-e wedji gizi nan-ul-dool-tehigw (Let’s try to listen to each other so that we can get to know each other)." Maine Policy Review 29.2 (2020) : 7 -16, https://digitalcommons.library.umaine.edu/mpr/vol29/ iss2/2.

This Essay is brought to you for free and open access by DigitalCommons@UMaine. The Margaret Chase Smith Essay

Indigenous Voices Charting a Course Beyond the Bicentennial Eba gwedji jik-sow-dul-din-e wedji gizi nan-ul-dool-tehigw (Let’s try to listen to each other so that we can get to know each other)

by Gail Dana-Sacco

ndigenous languages reflect an under- The Wabanaki people are a resilient As Maine celebrates its bicentennial, Istanding of the Universe that recog- people. We have survived despite it seems prudent to recall the state’s nizes the dynamic energy fundamental displacement, sicknesses, poverty, historical relationship with Indigenous to all our relationships. We realize, for trauma and war. We survived, but we peoples, to acknowledge how deeply that instance, that dawn does not happen in have paid a severe price over many, history affects our collective present, to an instant, but rather through chqoo- many generations. No matter what we recognize the oppressive systems and wubg,1 a rhythmic daily process that have endured, we have adapted, and I structures that continue to define that brings us into light. Chqoo-waban-a- credit this to our cultural belief systems. relationship, and to make the changes Our beliefs are rooted in natural laws, kee-hq, the Indigenous peoples of this required to establish a foundation for a they are rooted in the relationship area, now known as the state of Maine, good life for all of us going forward. we have with one another and in our hold a cultural framework embedded Charting the way forward together connection to this earth. Our ancestors in our languages that reflects a sophisti- were always willing to come forward requires that Indigenous voices, which cated understanding of our intimate and to help, to share, and to be good have been systematically silenced and complex connections with all people and neighbors. Our sovereignty before the denied, be welcomed, heard, and heeded. with the environment in which we live. contact with European settlers was Woli jksud-a-moo-tee-yeg, if we listen Our collective identity as Indigenous much different than it is now. It was well, we may be able woli-sud-ma-nen, people resides here and provides a firm unquestioned and respected. We have to hear clearly and to understand those foundation for strong healthy communi- kept peace despite broken treaties and voices el-mig-adg, as time goes on. ties. Our relationships extend well before empty promises. (Dana 2020) We are collectively called upon to and will persist well beyond Maine’s 200 carefully examine the social, cultural, years. The goal remains establishing an economic, and political underpinnings of Indigenous peoples have consistently enduring, respectful coexistence that tribal-state relations and to bring them responded with generosity and diplomacy enables all of us to thrive. Restoring peace into the light. It is a monumental task, in our dealings with the state of Maine in our homelands requires that Indigenous which feels daunting to me as an and with others before them who have voices, repressed and silenced as a direct Indigenous scholar, both in terms of its failed to treat us respectfully. We perse- consequence of the colonial enterprise, be import and its complexity. Retracing the vere, guided by our Indigenous knowl- heard and fully engaged across multiple legacy of intergenerational impacts of edge, despite persistent attempts to dimensions, in Indigenous languages and racism and injustice that persist for the colonize our territories and eradicate our in English. The highly endangered state of Chqoo-waban-a-kee-hq today is not a people. A Passamaquoddy tribal leader our languages puts us at risk of irreparable solo journey. I feel the weight and the recently observed: harm. The monumental task of restoring emotional toll of those burdens that have Indigenous-language-speaking communi- been carried by so many who have come This is Wabanaki territory that we stand ties provides a pathway for healing and an before me and share them with Indigenous on and we still recognize this as our opportunity for redress of harms done. As peoples everywhere. Even as I acknowl- homeland. We always will. We have we reclaim our voices and our language, edge and grieve the losses, I decline to let fished these waterways and protected we collectively experience we-tchqwa-bg, them define me. Rather, I deliberately this land for more than 11,000 years. becoming light. open the door for my voice and the voices

MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020 7 The Margaret Chase Smith Essay

of other Indigenous peoples to resonate and to inform a healthy, constructive path PASSAMAQUODDY PHONETIC AND DICTIONARY SPELLINGS forward that honors and celebrates our common humanity. Phonetic spelling Dictionary spelling I wish to amplify and strengthen Abenaki Aponahkewiyik Indigenous voices by coming in from the Bes-kud-moo-kud-ee-ig Peskotomuhkatiyik margins and taking that painful journey Bun-wup-skew-ee-hig Panuwapskewiyik with these courageous steps, grounded in Chqoo-waban-a-kee-hq Ckuwaponahkiyik our collective responsibility to tell our truths. I will highlight select pivotal chqoo-wubg ckuwapok points in our history, examine the trib- el-mig-adg elomikotok al-state relationship from a couple of Gwnus-qwum-kew-ig Qonasqamkewiyik different perspectives, and offer some Gwnus-qwum-kook Qonasqamkuk thoughts about implications for the Mdoc-mee-goog Motahkomikuk future. I invite you to consider, as we mark Maine’s bicentennial and the Meeg-mug Mi’kmaq fortieth anniversary of the Maine Indian Nulum-kew-ig Nolomkewiyik Claims Settlement Act(s), deepening our Schoodic Skutik collective inquiry into how we will Sibyig-ew-ig Sipayikewiyik respond. Specifically, how will we take we-tchqwa-bg weckuwapok responsibility for recognizing and Woli jksud-a-moo-tee-yeg Woli-ciksotomuhtiyek reversing deeply imbedded colonial atti- tudes and practices? How might we Woli-sud-ma-nen Woli-‘sotomonen emerge with a transformative action Wolus-toog-wee-hig Wolastoqiyik orientation that redresses the social, To explore the Passamaquoddy-Maliseet language further, visit the cultural, economic, and political inequal- Passamaquoddy-Maliseet Language Portal (https://pmportal.org/). ities that persistently disadvantage tribes and consequently the entire state? being, Wolus-toog-wee-hig/Maliseet, Chqoo-waban-a-kee-hq, helped secure WHO WE ARE AND WHERE people of the beautiful river, were part the border of the present day United WE COME FROM of our language family, now known as States during the Revolutionary War, he places where we tradition- Passamaquoddy-Maliseet, two closely have a long-standing relationship with Tally hunted, fished, planted, and related dialects. Meeg-mug/Micmac, our the federal government, formalized in gathered along watersheds define our relatives to the east, are closely related the Treaty of Watertown in 1776, the communities today. We are Sibyig-ew-ig, linguistically as are the Bun-wup-skew- first Treaty of Peace and Friendship people of the river, Nulum-kew-ig ee-hig/Penobscot, the people who live negotiated by the United States following people upriver, and Gwnus-qwum- where the river flows over the rocks, and its Declaration of Independence. The kew-ig, people of the sandy point, the Abenaki to the west. Collectively we acknowledged the are Chqoo-waban-a-kee-hq, People of “significance and importance of this known collectively as Bes-kud-moo-kud- 2 ee-ig, people of the pollack. We are the the First Light. treaty” in a joint resolution in 2013. present-day Passamaquoddy Tribe with Passamaquoddy homelands today The Passamaquoddy and Penobscot communities in Maine at Sibyig/Pleasant extend up and down both sides of the tribes of Maine, who first re-established Point and Mdoc-mee-goog/Indian Maine/Canadian border and inland formal relationships with the federal Township and in New Brunswick at along the Schoodic/St. Croix watershed government in 1976, have a deep inter- Gwnus-qwum-kook/St Andrews. Before with scattered recovered land holdings in vening history with the states of Maine the United States and Canada came into central and western Maine. The and . We focus here on the Passamaquoddy, who, with other experiences of the Passamaquoddy in the

8 MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020 The Margaret Chase Smith Essay

United States, with home communities at In 2015, LD893, “Resolve, Directing with tribes, beginning in the earliest days Sibyig/Pleasant Point and Mdoc-mee- the Secretary of State, Maine State Library of Maine’s statehood, presaged the state’s goog/Indian Township and tribal and Law and Legislative Reference Library sanction of the active exploitation of members who live and work throughout to Make the Articles of Separation of tribal resources as a matter of course. the state and beyond. Maine from Massachusetts More Chief William Nicholas, Passamaquoddy Prominently Available to Educators and Tribe at Mdocmeegoog, recently testified DEFINING FEATURES OF OUR the Inquiring Public,” was passed over the to a twentieth-century example of unilat- HISTORY WITH MAINE ’s veto. The reference to treaty eral state intervention that irreparably obligations was once again fully redacted harmed the tribe: Commitments to Tribes by the from the original proposed legislation Newly Constituted State of Maine titled “RESOLUTION, Proposing an At Indian Township, our reservation hen Maine separated from the Amendment to Article X of the has been dramatically reduced and flooded by actions that were taken Commonwealth of Massachusetts Constitution of Maine Regarding the W without our consent or input. In in 1820, its constitution provided that Publication of Maine Indian Treaty October 23, 1912: a representative of the newly formed state would be respon- Obligations” and changed into a narrower the St. Croix paper company informed sible for previous agreements between directive to make this information more the State Governor that his company Massachusetts and Passamaquoddy and available through the state library. The has invested several million dollars in Penobscot Tribes, whose territories had new law in its entirety reads: a paper manufacturing plant and were been already been significantly reduced short of power. To solve the problem, That the Secretary of State, Maine by unauthorized takings. Specifically, the company said that it would be State Library and Law and Legislative Maine accepts responsibility for honoring necessary to flood Indian Township Reference Library, within existing the treaty obligations of Massachusetts: and to create a dam to get the necessary resources, shall make the Articles increase of power. The company Fifth. The new State shall, as soon of Separation of Maine from requested support from the state of as the necessary arrangements can be Massachusetts, including the fifth Maine, which then helped the company made for that purpose, assume and subsection, more prominently available obtain an Act of Congress to authorize perform all the duties and obligations to educators and to the inquiring the dam being built at Grand Falls. The of this Commonwealth, towards the public.4 dam was built across the west branch Indians within said , of the St. Croix River at Grand Falls whether the same arise from treaties, Thus, the goal of making the treaty and flooded our reservation. What was or otherwise; and for this purpose shall language more explicit and available was once a river became an impoundment obtain the assent of said Indians, and subverted in favor of invisibility, leaving of water that still sits over thousands their release to this Commonwealth of one to wonder why the only reference to of acres of reservation land. This all claims and stipulations arising under Indians in the Maine Constitution happened without consent or even the treaty at present existing between remains so carefully secreted. You might consultation with the Tribe. (Nicholas the said Commonwealth and said consider this omission emblematic of the 2020a: 2) Indians. (emphasis added)3 politics of erasure that continues to haunt the tribal-state relationship, consistently Maine’s laws, policies, and practices Mysteriously, in 1875, an amend- providing cover for unjust and exploit- built an enduring scaffold for state control ment removed this section from any ative policies and practices that systemat- of tribes that remained substantially printed version of the Maine Constitution, ically oppress and deny the rights of unchallenged until the 1970s, when the while providing that the section would Indigenous peoples and communities to tribes sued in federal court and re-estab- remain in force. Thus, the state’s founda- live peaceably and thrive in their own lished recognition of their govern- tional agreement to honor treaty-derived homelands. ment-to-government relationship with obligations to the tribes, as a condition of The persistent lack of interest in the United States. Even then, the state of statehood, was erased from all printed owning the state’s treaty obligations, or Maine stridently denied any responsi- documents. any obligations to fair and just dealings bility for reconciliation of its egregious

MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020 9 The Margaret Chase Smith Essay systematic exploitation of tribal resources alienating lands and providing non- strong Catholic missionary presence. and the subsequent impoverishment of Native commercial interests with exten- Removal of children into foster care, entire communities, refusing to provide sive state-sponsored opportunities for systematic language oppression in the recompense through the Settlement Acts, resource extraction (O’Toole and Tureen educational system, lack of safe drinking including the Maine Implementing Act 1971: 2). A series of state court rulings water and sufficient food, and lack of and the federal Maine Indian Claims served to reinforce the state’s growing access to medical services all contributed Settlement Act, which explicitly extin- power and influence over tribal interests. to the persistent health inequities experi- guished the tribes’ aboriginal title. The In State v. Newell, an 1892 case enced intergenerationally by tribes. Settlement Acts effectively relieved the involving a dispute over Passamaquoddy A cascade of premature deaths due state of responsibility for its complete rights to hunt in their own territory to these conditions and to deep and cultural, political, social, and economic according to their own rules and customs persistent bias in state court systems subjugation of the Indigenous peoples of rather than Maine law, the court decided leaves a legacy of distrust and injury that Maine. in favor of Maine, using the rationale that will require a genuine and concerted the Passamaquoddy no longer functioned effort to address. In a particularly How Maine Carried Out as a political entity with the capacity for disturbing incident at Sibyig in 1965, one Its Commitments self-governance: tribal member, a World War II veteran The state’s ability to ignore its orig- and elder, was killed and another severely inal responsibilities for fair dealings with They have for many years been without brain-injured at the hands of a party of the tribes provided license for it to act a tribal organization in any political five men from Massachusetts, only one of sense. They cannot make war or peace, with impunity, to make persistent incur- whom was criminally charged and subse- cannot make treaties; cannot make sions on tribal territory, and to deny the quently acquitted in a Maine court. laws; cannot punish crime; Cannot basic human rights of Indigenous people. Challenges to the outcome of this inci- Maine exerted broad authority and strict administer even civil justice among themselves….They are as completely dent have been blocked by the mysterious governance of all tribal affairs and took disappearance of all but a few of the court full control over tribal lands and resources. subject to the state as any other inhabitants can be. They cannot now records (Woodard 2014). These acts of Submergence of our land through dams violence occurred in my lifetime, and our as described earlier, unauthorized takings invoke treaties made centuries ago with Indians whose political organization family and our Tribe still mourn the for roads and railroads, long-term (999- was in full and acknowledged vigor. deaths of this man and other tribal year) leases to non-Native interests, and (O’Toole and Tureen 1971: 17) members. We still carry the effects of the the cutting and sale of large swaths of injuries perpetrated at the hands of these virgin timber, all without recompense to To further strengthen state control, Massachusetts men and the legal systems the tribes, enriched the newly formed the state systematically developed a collec- that failed to hold anyone accountable. state and its citizens while impover- tion of “Laws Pertaining to Indians” that Disputes over tribal rights to fish and ishing tribal citizens. More details of the prescribed forms of tribal government, hunt have proven to be a never-ending state of the relationship between the provided certain incentives to domesti- source of conflict, with the state asserting Passamaquoddy Tribe and the state of cate the tribes, and otherwise exercised that the tribes have only the rights that 5 Maine in 1887 can be found in Lewis control over all tribal affairs. The state the state specifically decides to give them Mitchell’s (1888) address to the Maine presided over systematic resource and with the tribes insisting that they Legislature. extraction and social control, leaving little retain all aboriginal hunting and fishing Earlier, in 1842, the Maine Supreme opportunity for tribes to provide for their rights not specifically abrogated. This Court provided the rationale for the own needs. A tribal trust fund consisting conflict has persisted since Maine became state’s overriding authority over the tribes of the some of the proceeds of the state’s a state and has become particularly adver- when it declared the Indians “imbeciles” sale of tribal resouces was used by state sarial regarding fishing rights. The Maine requiring “paternal control” by the state Indian agents to issue food vouchers and Indian Tribal State Commission’s exten- “in disregard of some at least of the provide for minimal medical care at their sive report describes how these issues abstract principles of the rights of man” discretion. The state exerted full control played out between 1980 and 2014 and took full control of tribal territories, over tribal communities in concert with a (MITSC 2014).

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Voting Rights In the 1975 case Joint Tribal MAINE INDIAN LAND CLAIMS Ordinarily, the right to vote is an Council of the Passamaquoddy Tribe v. elemental right of citizenship, but for Morton, the US Court of Appeals for the n 1980, the Settlement Acts, including tribal citizens, whose full humanity has First Circuit acknowledged the tribe’s Ithe Maine Implementing Act and the not always been acknowledged and who right to have the federal government sue federal Maine Indian Claims Settlement have multiple claims to citizenship, the the state on their behalf by asserting that Act, extinguished aboriginal title to extent of these rights has not always been the state had illegally taken control of extensive tribally claimed lands, created clear. The federal Indian Citizenship Act tribal territory in violation of the 1790 a land acquisition fund intended to help of 1924 granted citizenship to all Native Non-Intercourse Act. The ensuing uncer- the tribes reacquire a small portion of the Americans living in the United States. tainty over the legitimacy of title to nearly aboriginal land holdings, and imposed The grant of citizenship should have two-thirds of the state of Maine caused a the most restrictive tribal-state jurisdic- carried with it the right to vote. The state rush to negotiate a settlement with the tional framework that exists in the United of Maine, which specifically excluded tribes. This settlement was brokered by States. Substantial differences in the inter- “Indians not taxed” from voting, was one attorneys and elected officials from the pretation of this legislation have proven of the last states in the nation to amend tribes, the federal government, and the an inordinate burden on the tribes, whose its constitution to allow Indians to vote in state. resources to support sustained legal chal- federal elections in 1954. It was not until In one of the Passamaquoddy lenges are decidedly limited. A Maine 1967 that tribal members could cast a communities, a lengthy, complex settle- state legislator recently observed: 6 vote in state elections. The right to vote ment proposal was provided at the door The settlement was not a grant of in tribal elections varies, with the upon entering the community meeting new authority to the Tribes. It was Passamaquoddy Tribe having local resi- where a vote would be called to approve a restriction of the jurisdiction they dency restrictions on the right of tribal it. The tribal negotiating committee, already possessed. With the Settlement, citizens to vote in tribal elections. which relied heavily on the judgement of Maine moved in a dramatically different the tribe’s attorney, had a nominal role in direction from the rest of the country at FEDERAL RECOGNITION the final negotiations, which took place a time when federal policy had begun AND RESPONSIBILITY mostly among attorneys. The terms of the to strongly encourage and support settlement hastily presented to the tribes tribal self-determination, a policy that n the mid-1970s, the Passamaquoddy for approval were not the terms that continues to the present day….Maine ITribe and its members began to actively emerged in the laws passed at the state has not developed an Indian policy contest state control and, through a and federal levels, with significant based on government-to-government couple of successful court battles, estab- impactful changes in those provisions relations. The Settlement and court lished both the Passamaquoddy and the made without tribal knowledge, some decisions effectively became the State’s Penobscot tribes as federally recognized within days of congressional approval only governing Indian policy. The State tribes entitled to the protection of the (Friederichs et al. 2017) has failed to recognize the potential federal government, as trustees of tribal In particular, language was inserted benefits of more harmonious and interests. These court decisions reaffirmed stipulating that none of the federal laws effective Tribal-State relations based on mutual respect for governmental tribal rights far beyond those that the pertaining to Indians passed in the future sovereignty. The State has approached state had allowed the tribes to exercise. would apply to the tribes of Maine, unless After this, the Passamaquoddy and the Tribal-State relations as a zero-sum those tribes were specifically mentioned game. (Talbot Ross 2020) Penobscot began active participation in in each new piece of legislation. This federal Indian programs and began to provision, never approved by the tribes, In the 40 years since the passage of exert their rights to federal protection continues to unduly circumscribe and the Settlement Acts, it has become under the law, which now superseded the limit the Passamaquoddy and Penobscot apparent that the laws have numerous state’s ordinary exercise of jurisdiction from enjoying the usual rights and privi- shortcomings as identified by the Maine over tribes. The tribes and tribal members leges accorded all other federally recog- Indian Tribal State Commission began to prevail over the state in jurisdic- nized tribes in the United States. (MITSC), created by the Settlement Acts, tional matters. and three tribal-state relations task forces

MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020 11 The Margaret Chase Smith Essay convened by the Maine Legislature that affected before going into effect, as is environment. It has blocked efforts to have examined the issues. One of the required by the federal Settlement Act. make Maine citizens safer and more primary duties of the MITSC is to secure in their communities. Make no “continually review the effectiveness of Restoring Good Faith by mistake: the consequences of §1735(b), Reversing 1735B this Act and the social, economic and whether intended or not, have been legal relationship between the Houlton A central part of restoring federal downright damaging to Maine as a Band of Maliseet Indians, the protections for tribes involves reversing whole. (Hinton 2020: 5). the effect of section 1735 B under the Passamaquoddy Tribe and the Penobscot Support for the legislation that Nation and the State.” The MITSC has federal settlement act. This controversial part of the settlement act provides that would amend the Settlement Act focuses statutory authority to make reports and on the benefits that can be derived from recommendations to the legislature, the federal laws subsequently passed for the benefit of Indians do not apply to tribes having the tribes and state work together Passamaquoddy Tribe, and the Penobscot to develop tribal self-sufficiency. Sustained Nation as it deems appropriate. The find- in Maine, if the law would “affect or preempt the application of the laws of efforts to negotiate peaceful resolutions to ings of the first Task Force on Tribal Sate tribal-state conflicts have been persistently Relations are specified in their 1997 the State of Maine” unless the law “is specifically made applicable within the denied in the face of the institutionalized report, At Loggerheads: The State of belief that the tribes should be subservient Maine and the Wabanaki. The results State of Maine.” Thus each new federal law applying to all federally recognized to state control. of the second convening can be found in One of the tribal chiefs recently the Final Report of the Tribal State tribes would, by default, exclude the tribes of Maine. This provision was not observed that the legislation has func- Workgroup issued in 2008. Most recently tioned for 40 years to reinforce centuries the Task Force on Changes to the Maine agreed to by the tribes and, as mentioned earlier, was added just as the legislation of exploitation and conflict and to Indian Claims Settlement Implementing suppress efforts by tribes to improve the Act, convened in 2019, presented its find- was about to be passed by Congress. The Task Force on Changes to the Maine safety and the quality of life for their citi- ings and recommendations to the Maine zens. Yet, in an effort to create a mutually Legislature.7 Indian Claims Settlement Implementing Act found that since 1980, 151 laws beneficial and more harmonious relation- Proposed LD 2904 pertaining to all other federally recog- ship, he offered this perspective: nized tribes do not apply to the tribes of Early in Maine’s bicentennial year, We are not here to fight about the past, the state’s Judiciary Committee heard Maine due to this exception. It is hard to we are here to fight for the future of our testimony on LD 2094, “An Act to imagine how anyone stands to benefit people and our environment. To do so, Implement the Recommendations of the from excluding the tribes of Maine from we have asked for the rights, privileges Task Force on Changes to the Maine participating in the same laws and rules benefits, and immunities enjoyed by Indian Claims Settlement Implementing that apply to tribes throughout the other federally recognized Tribes across Act.” The task force, comprised of both nation. Improvements in the delivery of this Nation. This is a lot to ask but state and tribal representatives, worked health care, the ability to obtain emer- it is not too much to ask. Tribes and for six months to recommend 22 changes gency disaster relief, and the exercise of states around the country work hand to the Maine Implementing Act. The task criminal jurisdiction over crimes in hand every single day to improve force calls for changes in these areas: alter- committed by Indians on tribal lands are their relations under a federal Indian native dispute resolution and tribal-state all affected by 1735 B. A Passamaquoddy law framework. There is no reason this collaboration and consultation, criminal attorney cited this provision as cannot happen in Maine. (Nicholas jurisdiction, fish and game; land use and 2020b: 4) natural resources, taxing authority, having been wielded as a weapon against the Tribes to blunt self-determination The proposed amendments to the gaming, civil jurisdiction, federal law and self-governance time and time Settlement Act provide for the develop- provisions, and trust land acquisition. In again. It has directly prevented federal ment of an alternative dispute-resolution forming the task force, the Maine funds from coming into Maine. It has framework referred to as the Bicentennial Legislature provided that any changes in stalled tribal efforts to clean up the Accord, which would incorporate best the law must be approved by the tribes

12 MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020 The Margaret Chase Smith Essay

practices employed throughout Indian 2. Ongoing impact of historical trauma, ADDRESSING TRIBAL HEALTH country to develop effective, productive also known as intergenerational DISPARITIES IN MAINE governing principles to guide a more trauma, on Wabanaki people cooperative approach to improving trib- that influences the well-being of he complex legal and historical rela- al-state relationships. This proactive individuals and communities Ttionships between tribes and state stance promises to set a tone in which the 3. Differing interpretations of tribal and federal governments in the United tribes and the state can work together to sovereignty and jurisdiction that States underpin and circumscribe our improve the prospects for everyone. make encounters between the tribes capacity to effectively address persistent and the state contentious tribal health inequities. In 2014, with support from the Robert Wood Johnson GOVERNMENTAL POLICY, We further assert that these conditions Foundation Public Health Law Research HEALTH INEQUITY, AND and the fact of disproportionate entry project, I conducted a single-case-study INTERGENERATIONAL TRAUMA into care can be held within the context research project investigating how the of continued cultural genocide, as nstitutionalized efforts to subjugate defined by the Convention on the quality of the tribal-state relationship in and eradicate tribes through state and I Prevention and Punishment of the Maine and the socially constructed legal federal policy are implicated in persistent Crime of Genocide, adopted by the environment within which it operates health inequities experienced by Native United Nations General Assembly in affect the development of law and policy 9 peoples. For example, the widespread 1948. (TRC 2015: 8) to improve tribal health. I focused on practice of forcibly removing children learning how the Passamaquoddy Tribe from their families and communities Detailed findings include an acts through two formal tribal-state struc- into foster care and remote boarding acknowledgement that Native children, tures—the MITSC and the tribal repre- schools has had a devastating effect on the when they are identified, continue to sentative to the Maine Legislature—to Wabanaki and other Indigenous commu- enter foster care at disproportionate rates; address tribal health issues. I specifically nities. The traumatic loss of family and that challenges persist in the proper examined the development and disposi- cultural connections has intergenerational implementation of the Indian Child tion of the Resolve to Direct Action on consequences still reverberating today. Welfare Act; that systemic support for Health Disparities of the Passamaquoddy In 2013, long-time issues with enforce- well-functioning Native-centered foster Tribe and Washington County (HP0848, ment of the federal Indian Child Welfare care systems is lacking; and that support LD 1228) passed in 2009.10 Act of 1978, a federal Indian policy must be made available for intergenera- Mediating factors that affect the tribal- designed to reverse the damage, led to the tional healing from the traumatic experi- state relationship were identified and convening of the Maine Wabanaki-State ences of those who have been affected by recommendations to strengthen tribal- Child Welfare Truth and Reconciliation these systems. Recommendations include state relations to more effectively address Commission (TRC). For two years, the supporting cultural resurgence and cere- tribal health issues were provided. The data TRC investigated and chronicled the monial approaches to traditional healing to inform the study results included 22 forcible removal of Native children into and language restoration; honoring tribal in-depth semistructured key informant foster care in Maine and the abusive and sovereignty; and building training and interviews, documentary evidence, and neglectful treatment they experienced. In system supports for encouraging strong observation of select state and tribal June 2015, the TRC released its report, cultural ties as well as monitoring compli- governmental processes. Interviewee affili- Beyond the Mandate: Continuing the ance with ICWA. Maine Wabanaki ations and roles are summarized in Table 1. Conversation, reporting these central REACH (Restoration-Engagement- In brief, the thematic analysis of the findings among others: Advocacy-Change-Healing), a nonprofit data reveals two important mediators of From our perspective, to improve organization that initiated the work of policy outcomes: the quality of the trib- Native child welfare, Maine and the the TRC, continues to advance al-state relationship and the socially tribes must continue to confront: “Wabanaki self-determination by constructed legal environment in which strengthening the cultural, spiritual and this relationship is situated. A cooperative 1. Underlying racism still at work in physical well-being of Native people in orientation to working together; deep- state institutions and the public Maine.”8 ening understanding and demonstrating

MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020 13 The Margaret Chase Smith Essay table 1: Research Participant respect, regular communication racism, and competition for scarce Affiliations and Roles between the parties, attention to a resources, where any form of tribal benefit constructive process and accountability is seen as a loss to everyone else. No. Participant affiliations for results, and institutionalization are As for the resolve to direct action on 12 Passamaquoddy identified as important aspects of the health disparities, the study it required 6 Non-Native quality of the tribal state relationships was never done, and no action plan was 4 Other tribe that affect policy development and developed for the legislature to consider. implementation. Aspects of the socially The institutional structures currently in constructed legal environment in which No. Participant primary roles place, the MITSC and the tribal represen- the tribal-state relationship operates tative to the Maine Legislature, are inade- 4 MITSC commissioner include the history of tribal-state rela- quate, as currently constructed, to the tions characterized by colonization and 3 MITSC chair task of addressing tribal health disparities, dependency; the state’s tendency to 3 Tribal representative to Maine even when it is an urgent matter and the Legislature resolve conflicts through enforcement intention to do so is explicitly stated. It 3 Other elected tribal leader and adjudication as opposed to the tribes’ persistent diplomatic efforts; seems apparent that significant structural 2 Maine state legislator personal and institutional racism; change will be required to improve trib- 7 Executive/professional staff– distrust; threats of violence; and a al-state relationships and the capacity of MITSC, state, or tribal zero-sum perception, driven by poverty, the tribes to address health inequities through the state’s legislative process. figure 1: Tribal-State Health Policymaking Relationship

lnputs Authority/Strategy Mediating Factors Outputs Impact Long-term Outcomes Reports to tribes Quality of Tribal- and state on: State Relationship • Effectiveness of • Cooperation Maine lndian land claims • Understanding & Tribal State settlement acts respect Commission • Social, • Communications MTSC economic, and Intermediate legal • Process & Policy Process relationship accountability Outcomes • More between tribes • Institutionalization effective and the state • Productivity health policy Improved increases • lntegrated tribal & Passamaquoddy • Tribal/state health state Tribal Law economic surveillance health Government passes improvements systems outcomes • Accountability • Improved for effective feedback Socially tribal-state mechanisms • Proposes and Constructed Legal relations Tribal sponsors Environment representative to legislation • Tribal-state history Maine State • Speaking • Racism Legislature privileges • Distrust TRMSL • Serves on • Zero sum perception committees • Tribal governance • Cannot vote

14 MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020 The Margaret Chase Smith Essay

RECONSTITUTING SYSTEMS exercise of tribal sovereignty requires As a Native person, having witnessed and consistently taking action to self-govern. experienced persistent misbehavior by the ultural grounding consistent with the Having that authority recognized by state against Indigenous communities, I Cinstructions embedded in Indigenous others is essential. Here in Maine, we still have often wondered how to interrupt the languages, structural reordering, and have a long way to go to create an envi- destructive power of oppressive state poli- economic and environmental stability are ronment in which tribal communities can cies and create a supportive, generative essential elements of healthy, sustainable rebuild and reconstitute as strong Native environment in which we all can thrive. Indigenous communities. These elements Nations, coexisting peacefully with all of To do so may require some misbehaving. do not operate in isolation, but rather the people of the state. Building tribal Indigenous people continue to expe- synergistically support the development sovereignty by strengthening tribal rience persistent collective health inequi- and sustenance of strong tribal communi- systems reverses the powerful effects of ties rooted in the laws and policies that ties, capable of building and maintaining colonialism. Success in meeting tribal govern the social, political, and economic healthy relationships and providing for social and economic goals depends on the order. Peaceful and productive state-tribal the health and longevity of the people. exercise of tribal sovereignty through the relations depend on the dismantling of Our Native languages provide the development of strong tribal govern- the colonial legacy of oppressive and foundation for the restoration of the ments, that are driven by Indigenous exploitative law and policy. While initia- healthy family, social, and environmental teachings embedded in our languages, so tives such as the declaration of an systems that have been disrupted by that they can be depended upon to act Indigenous Peoples Day and the outlawing persistent colonial incursions and abuses. with integrity in consistently upholding of Indian mascots in Maine make prog- Re-establishing the primacy of Indigenous collective tribal interests as the paramount ress towards a cultural shift in which languages as the framework upon which concern. Indigenous peoples are respected and social systems and internal tribal struc- Sustenance, and a safe and secure honored, those symbolic overtures must tures are rebuilt is essential to cultural homeland, in concert with the restoration be backed by a systematic rebalancing of survival and central to tribal self-determi- of strong tribal community relationships the power equation that interrupts the nation. The current intergenerational provide the foundation for sustainable persistent expectation of subservience in resurgence of efforts to create and nurture self-sufficient communities, whose deci- favor of equality and partnership. The Native-speaking communities is reflective sion-making is guided by Indigenous tribes and the state share responsibility for of our collective realization that the knowledge and whose economies are disrupting and equalizing the power rela- healing properties of the language are directly tied to our collective health. The tionship. The levers for social change available to help us reorder and restruc- elimination of Native health inequities imbedded in the policy-making process ture our relationships to support the depends on restoring economic, social, provide opportunities for civic engage- rebuilding of strong Native Nations. We political, and cultural strength to tribal ment and the pursuit of social justice. In are called upon to critically evaluate and communities, thus specifically reversing order to contribute to a healthier society, reconstitute decision-making processes at the effects of colonization by choosing to we must carefully examine our assump- every level in tribal, state, and federal have Indigenous values consciously drive tions about each other and the systems governments. Structural reordering will every decision. within which we operate and consider be required to develop a framework for accepting responsibility for acting on respectful, productive, healthy, and THE POWER AND POLITICS what we learn. enduring tribal-state relations and an OF MISBEHAVING This healing journey extends to the environment in which we all can thrive. relationships between the Indigenous Strong self-governance processes, in hen appointed to certain positions, peoples of Maine and others who call which Native communities reclaim Wsuch as the Maine Indian Tribal Maine home. Listening deeply to responsibility for the integrity of their State Commission, a nomination by the Indigenous voices, which have been own governmental systems and for imple- governor and confirmation by the Maine systematically suppressed, and finding menting health-restorative policy for all Legislature results in an authorization to pathways to reconciliation is the work of the people, will serve to strengthen collec- serve in that capacity for a full term, “if the next 200 years and beyond. By doing tive agency and build self-sufficiency. The you so behave yourself well in that office.” so, Maine can progress in new and

MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020 15 The Margaret Chase Smith Essay perhaps unfamiliar ways, working in part- REFERENCES http://www.mainelegislature.org/legis /bills/getTestimonyDoc.asp?id=141200 nership with Indigenous people to rebuild Dana, Elizabeth. 2020. “Testimony in Support healthy communities and bring us all into of LD 2094: An Act to Implement the O’Toole, Francis J. and Thomas N. Tureen. 1971. “State Power and the the light. ❧ Recommendations of the Task Force on Changes to the Maine Indian Land Claims Passamaquoddy Tribe: ‘A Gross National Hypocrisy?’” 23 Maine Law Review 1. NOTES Settlement Implementing Act.” Hearing on LD 2094 Before the Judiciary Committee, Talbot Ross, Rachel. 2020. “Testimony in 1 Passamaquoddy words appear in the 129th Legislature. Augusta, ME. http:// Support of LD 2094: An Act to Implement text in their phonetic spelling followed www.mainelegislature.org/legis/bills the Recommendations of the Task Force by English translations; see the sidebar /getTestimonyDoc.asp?id=141201 on Changes to the Maine Indian Land on page 8 for the spelling used in the Friederichs, Nicole, Amy Van Zyl-Chavarro, Claims Settlement Implementing Act.” writing system that appears in the and Kate Bertino. 2017. The Drafting and Hearing on LD 2094 Before the Judiciary Passamaquoddy-Maliseet Dictionary and Enactment of the Maine Indian Claims Committee, 129th Legislature. its companion website (https://pmportal Settlement Act: Report on Research Augusta, ME. http://www.maine .org/). Findings and Initial Observations. legislature.org/legis/bills/getTestimony 2 Maine 126th Legislature, Joint Resolution Commissioned by the Maine Indian Tribal- Doc.asp?id=139833 Acknowledging the Treaty of Watertown of State Commission. https://digitalmaine TRC (Maine Wabanaki-State Child Welfare 1776 on the Occasion of President George .com/mitsc_docs/24/ Truth & Reconciliation Commission). Washington’s Birthday, HP395, 2013. Hinton, Corey. 2020. “Testimony in Support 2015. Beyond the Mandate: Continuing https://www.mainelegislature.org/legis of LD 2094: An Act to Implement the the Conversation. http://www /bills/bills_126th/billtexts/HP039501.asp Recommendations of the Task Force on .mainewabanakireach.org/maine 3 Maine Constitution, Article X, § 5 is avail- Changes to the Maine Indian Land Claims _wabanaki_state_child_welfare_truth able on the following website: https:// Settlement Implementing Act.” Hearing on _and_reconciliation_commission legislature.maine.gov/lawlibrary/sections LD 2094 Before the Judiciary Committee, Woodard, Colin. 2014. “Family’s Quest for -of-the-maine-constitution-omitted-from 129th Legislature. Augusta, ME. http:// Justice Still Burns, 50 Years Later.” Maine -printing/9296/ www.mainelegislature.org/legis/bills Sunday Telegram, August 3, 2014. https:// 4 Text of LD 893, 127th Legislature (2015) is /getTestimonyDoc.asp?id=141202 www.pressherald.com/2014/08/03 available here: http://legislature.maine Mitchell, Lewis. 1888. “Address to the Sixty- /epilogue-fire-still-burns-for-familys-half .gov/legis/bills/getPDF.asp?paper= third Legislature.” Maine State Legislature, -century-quest-for-justice/ HP0612&item=6&snum=127. House Document no. 251. Augusta, ME: 5 Maine State Dept. of Indian Affairs, “A Burleigh and Flynt. http://www.wabanaki Compilation of Laws Pertaining to Indians, .com/wabanaki_new/documents Gail Dana- State of Maine,” 1973. https://files.eric /Mitchell%20Speech%201887%20 Sacco became .ed.gov/fulltext/ED076281.pdf (official%20reduced).pdf the first known 6 http://archive.abbemuseum.org MITSC (Maine Indian Tribal State Passamaquoddy to /headline-news/Settlement%20Act Commission). 2014. Special Report earn a Ph.D. when /HeadlineNewsSettlementAct.html Assessment of the Intergovernmental she completed Saltwater Fisheries Conflict between the 7 These and other reports and links can be Passamaquoddy and the State of Maine. her doctorate in found on the MITSC website (https:// Trescott, ME: MITSC. https://www.mitsc health policy and www.mitsc.org/reports-1). .org/reports-1 management at 8 http://www.mainewabanakireach.org Nicholas, William. 2020a. “Testimony in Johns Hopkins /about Support of LD 2094: An Act to Implement University in 2009. Today, her work centers 9 The results of this study, published here the Recommendations of the Task Force on advancing wolibmowsawogon, a world for the first time, were formally presented on Changes to the Maine Indian Land in which Indigenous peoples, lands, and in 2014 to the Maine Indian Tribal-State Claims Settlement Implementing Act.” Commission, the National Congress of Hearing on LD 2094 Before the Judiciary languages can thrive. This article is dedicated American Indians Tribal Leader/Scholar Committee, 129th Legislature. to all the Passamaquoddy who have come Forum, the Public Health Law Research Augusta, ME. http://www.maine before us and who are with us today, and the Annual Meeting, and the American Public legislature.org/legis/bills ones who are still to come, whose love and Health Association. /getTestimonyDoc.asp?id=141137 support have made this journey possible and 10 More information about HP0848, LD 1228 Nicholas, William. 2020b. “Testimony in will guide us forward. Gazelmulpa. can be found on this website: http://www Support of LD 2094: An Act to Implement .mainelegislature.org/legis/bills/display the Recommendations of the Task Force _ps.asp?ld=1228&PID=1456&snum=124. on Changes to the Maine Indian Land Claims Settlement Implementing Act.”

16 MAINE POLICY REVIEW • Vol. 29, No. 2 • 2020